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State v Salele [1995] FJHC 31; Hac0004t.95b (10 February 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

MISC. CRIMINAL CASE NO:0004 of 1995
(Labasa Magistrates Court Crim.Case. No:664/91)

BETWEEN:

STATE

- and -

ATONIO SALELE & ANOTHER

Miss Laisa Laveti for the State.
Mr. V. P. Ram for the Accused.

SENTENCE AND SENTENCING REMARKS

The accused ATONIO SALELE with another was charged for the offence of rape contrary to section 149 and 150 of the Penal Code.

The offence took place on 8 November 1991 at Delailabasa in the Northern Division with a 16 year old girl namely UNAISI DIUCA (the complainant).

Both the accused pleaded not guilty to the charge. After trial judgment was delivered by the learned Magistrate on 19 December 1994; he found the second accused not guilty and acquitted him. The first accused ATONIO SALELE (hereafter referred to as the "accused") however, was found guilty and convicted.

The learned Magistrate recorded that the accused has nine previous convictions. Then he heard the accused in mitigation. All that accused said was that "my wife is expecting a child and I want time before being sentenced". Thereafter the learned Magistrate recorded this sentence: "Accused is referred to High Court for sentencing under section 222 of the Criminal Procedure Code. Accused is remanded till 30/12/94".

It is in these circumstances that the case has been referred to the High Court for sentencing.

The said section 222 (1) provides, inter alia, as follows:

"222. - (1) Where a person, being not less than seventeen years of age, is tried by a resident magistrate for any offence, and such person is convicted by such magistrate of that offence, or of any other offence of which he is liable to conviction under the provisions of this Code then, if, on obtaining information as to his character and antecedents, the magistrate is of opinion that they are such that greater punishment should be inflicted in respect of the offence than the magistrate has power to inflict, the magistrate may, in lieu of dealing with him in any manner in which the magistrate has power to deal with him, commit him in custody or on bail to the Supreme Court for sentence in accordance with the following provisions of this section".

In this case the learned Magistrate had before him the accused's previous convictions which number 9 and except for one in December 1990 for assault occasioning actual bodily harm for which he was bound over, the rest were for drunk and disorderly for the period 1982 to 1988 for which he was fined, bound over and in one case two months imprisonment. His convictions were not for the type of offence for which he is before this Court for sentencing.

Mr. Ram submits that the case ought to be remitted to Magistrate's Court as that court has adequate powers of sentencing on the facts and in the circumstances of this case. He says that there was no serious assault. As for injuries he says they were minor with bruises. There was no "absolute fierceness". It was not a gang rape as stated by the learned Magistrate and he seems to have taken this "out of proportion".

The learned State Counsel on the other hand has submitted that the learned Magistrate was justified in referring the case to High court for sentencing. She said that it was a serious case of a girl being raped during her "period" and being pulled out of taxi and dragged down a slope at Delailabasa. The victim had bruises and was found fully naked when police arrived.

I have given very careful consideration to what Mr. Ram and Miss Laveti have said on the matter, and I am of the firm view that the learned Magistrate has quite properly forwarded this case for sentencing by the High Court. One has only to look at the facts of this case for his reasons for doing so which are, briefly stated, in the learned Magistrate's judgment as follows:-

"The two accused are charged with having had unlawful carnal knowledge of a girl named Unaisi Duica without her consent, on the 8th day of October 1991.

According to the complainant Unaisi Diuca she was going for a dance with one Losalini and had been waiting for a taxi at Low Cost on the day of the incident. Her friend Losalini had come in a taxi with the two accused. The dance was at Naidu's night club. Although she wanted to get down at the N.B.F. the taxi headed for Delailabasa as the two accused had wanted to see a friend at Delailabasa. One of the accused had sat in the front and the other at the back while she had sat between Losalini and the accused at the back. Losalini's uncle Joseph too had been in the taxi.

The taxi had stopped at a house in Delailabasa. She had been pulled out by the accused who had sat in the front and she had screamed. The time had been around 8.30p.m. The taxi driver was asked to go. She was pulled to a slope pushed on to the ground covered with grass. No houses nearby.

Her clothes were taken off by force. She was not threatened but when she tried to run she was held by the hand. One of the accused has sex with her. She had had sex earlier twice. When one had sex with her the other one held her legs. When one finished the other one had sex with her by force.

While the second one was raping her the police van came and he had rolled down. She was naked. There were four policemen and Losalini was with them. Police caught both accused and all were taken to the police station. The taxi driver too was there.

The injuries are as in the Medical Report as follows: -

"1. 3cm x 2 size. Bruise mark on neck.

2. Multiple bruise mark on neck like lip marks.

3. Pt is bleeding - she started having her period in the morning.

4. Pieces of grass seen on the perineum

5. Pt is not a virgin. No torn hymen seen."

Miss Laveti referred me to the Fiji Court of Appeal case of MOHAMMED KASIM and THE STATE (Criminal Appeal No. 21 of 1993 F.C.A.) where certain guidance was given on sentence in rape cases. There it is stated:

"While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the courts that the crime of rape has become altogether too frequent and that the sentences imposed by the courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where proper sentence may be substantially higher or substantially lower than that starting point".

In this case while waiting by the roadside for transport to go to a night club the complainant hailed a taxi to stop. You with other men were in it and instead of letting her go to the club you all proceeded in a different direction, arrived at a spot at Delailabasa, you forcefully pulled her out of the taxi and dragged her down a slope, took off all her clothes and raped her when another person held her leg. The victim was a 16 year old girl who was a complete stranger to you. She was an innocent member of the public. Whereas you are a married man with your wife expecting (as you say in mitigation).

As the learned Magistrate said and I agree with him that it is very unlikely that she would have agreed to have sex with a stranger like you whom she had met for the first time and also when she was having her "period".

There are no mitigating factors in your case. The only thing is that although you have no previous convictions they are not akin to the present offence. This case took long to decide because you disappeared for a long period of time during the trial and had to be brought to court on bench warrants.

The offence of rape is undoubtedly a serious one. It carries a maximum of life imprisonment.

The number of rape cases that have come before the courts have been on the increase year by year. The streets are becoming unsafe for young girls and women for this reason. The sentences meted out in the past are not having the desired effect. The courts ought to and are now taking a very serious view when it comes to sentencing in rape cases and other related offences. The Fiji Court of Appeal has given certain guidelines with the starting point of seven years "without aggravating or mitigating features".

We would all like to see the day when our girls and women feel safe to walk the streets without fear of being raped or molested in any manner. I for one have no sympathy whatsoever for those who commit this type of offence. It seems that these days the only way to deter others from committing this offence is to visit them with adequate sentences.

The fundamental purpose of the criminal law is to protect the community. This can be done by making the punishment fit the offence and the offender thereby promoting respect in the community for the justice of the criminal law. Hence the need for the court to have regard to the need for general deterrence.

The offence that you have committed and for which you stand convicted by the learned Magistrate is so heinous that the fact the crime was a first offence or that you have not been to prison before for any length time are of little relevance as the guidelines in KASIM indicate.

In the case of JOSEFATA VAKAROROGO and THE STATE (Crim. App. No. AAU0009J.94S FCA) a sentence of eight (8) years imprisonment for rape by the High Court was upheld.

The sentence of the Court is that you will be imprisoned for six (6) years.

Right of Appeal.

D PATHIK
JUDGE

At Labasa
10 FEBRUARY 1995.

HAC0004T.95B